Defense Perspective (Continued from page 34)
and back claim. If you get me his prior records that show he was discharged with no complaints, we can get this case resolved.” Falling for this artifice does not help you or your client. Providing past accident records voluntarily only cuts down on the defense attorney’s work when you file suit. The prior medi- cal records will only provide the adjuster with ways to chip away at the value of your case. In bigger cases with claims for per-
manency that are obvious early on, the adjuster may request an “IME.” Think back to how many times you have actu- ally gotten a favorable DME from the doctor cherry-picked by the insurance company defending the claim. Voluntary submission to a DME will only cut down on the defense attorney’s work, give the adjuster leverage, and possibly subject your client to another DME by a differ- ent doctor after suit is filed. Even after suit is filed, do not allow you client to attend a DME without an agreed upon set of parameters. The agreed upon set of parameters and handling DME’s is a whole separate article.
If Settlement Negotiations Fail, Substitute
Sometimes settlement negotiations
fail with adjusters and defense lawyers because of bad personal chemistry. It is not the settlement amount that is the problem; it is the lawyer who is demanding the settlement amount. Some adjusters would rather let a deal fall apart than give a particular lawyer a “victory”. In this case, bring in the “good cop” (or at least a different cop). The new cop comes back without all the built up animosity and while perhaps even admitting that the bad cop can be a little difficult at times, agrees that the plaintiff ’s numbers are in the right ballpark because of “X, Y and Z.” This technique works well for us, but lawyers typically will not employ it be-
cause it requires taking yourself, or your partner, out of the deal. If you can set your egos aside, it is a great way to keep settlement negotiations alive on your terms. This practice works well in our office since we have the gender diversity mix, and occasionally certain claim rep- resentatives or defense attorneys prefer to deal with one over the other.
Know Your Adjusters If you do enough auto tort litigation,
you will come across the same adjusters over and over again. Getting to know the people you deal with is a more enjoyable way to live and creates a relationship with people who are often enjoyable to work with, even in the adversarial pro- cess. Adjusters typically fall into one of three categories, (1) “It is not my money, and I really want this file off my desk”; (2) “It is my money, all claimants are liars, I love to talk shop all day long, and I will develop an attitude problem if you disagree with me over this case”; and (3) “My job is important, I am competent and I evaluate cases fairly on a case by case basis.” Luckily, most adjusters fall into category one or three. If you have an adjuster that falls into category two, practice your patience and people skills, or see tip # 14 above. Keep in mind when dealing with
adjusters that they keep tabs on you. One lawyer who now refers his personal injury cases to us told me that every final offer seemed consistent with the oth- ers; they seemed to know about where his settle point was. Some of the bigger insurance companies do keep “files” on particular firms and attorneys. They know who is willing to try a case and who will accept a two times specials of- fer every time. They know who will wait until the pretrial to take their last offer and who will wait to settle the case on the courthouse steps. Claim representatives talk just like lawyers do. They know who the blowhards and softies are. Make sure that the reputation you develop is one that maximizes the offers your clients get.
Do Not Send Out Medical Records As They Come In
Adjusters will always ask in the initial
contact letter for you to send them medical records as you receive them. As a general rule, we do not send out medical records until the medical pack- age is complete. (This does not apply to PIP.) We do this for two reasons. First, it creates an administrative nightmare to figure out what has and has not been sent. If you send them out piecemeal, the adjuster may misplace some of the medical records and will need them all over again in the end anyway. Second, if you have a case that involves
a serious injury, an aggressive claim rep may start building a case against your client early on by obtaining surveillance. In a high stakes case, the claim rep will not hesitate to hire an investigator to dig up dirt on your client. This happened in a case where the claimant was tell- ing her physical therapist she was not able to do her laundry or clean her own house. At the same time, a videotape was rolling while she was doing laundry as a housekeeper for another family. (Her explanation at trial was that she only said she could not do her own laundry or clean her own house!)
Prior Injuries and Conditions
Degenerative conditions and pre-
existing problems will not necessarily scuttle your case. Claim representatives and defense attorneys invariably hang their hat on degenerative conditions (which we all have on some level) and pre-existing problems. Thankfully, Maryland has susceptibility jury in- struction (MPJI 10:3) and aggravation of pre-existing condition instruction (MPJI 10:4). If you have either one of these issues, be able to articulate the difference between your client’s pre- accident problems and treatment and current condition. Do not let a claim representative re- duce the value of your case because of
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Trial Reporter
Winter 2009
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